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TMI Blog2013 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... son in custody may be released, power of preventive detention can be exercised. As decided in REKHA VERSUS STATE OF T. NADU TR. SEC. TO GOVT. & ANR (2013 (2) TMI 189 - SUPREME COURT OF INDIA) when an order under preventive detention law is under challenge before a court, there are limited grounds or reasons on which it can be invalidated or struck down. The procedural requirements are only safeguards available to the detenu since the court is not expected to go into the subjective satisfaction of the detaining authority. Procedural requirements, as per judicial pronouncements, have to be strictly complied with. Preventive detention is an extreme step which is required and may be justified, but when a detention order does not meet the prescribed parameters and fails to comply with the procedural requirements, the order stands vitiated and has to be struck down. Thus the impugned detention orders are quashed and set aside, however, this order will not affect the criminal cases and various FIRs which are pending against Rohit Sakhuja and Ajit Singh Chadha. - Writ Petition (Criminal) No.288,289/2013 - - - Dated:- 4-4-2013 - Sanjiv Khanna And Siddharth Mridul, JJ For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the petitioners pressed one contention; that the detaining authority has not examined and gone into the facet whether there was an imminent possibility that Rohit Sakhuja and Ajit Singh Chadha would be released on bail, though they were in judicial custody in the criminal case(s) pending against them. We may record that we found force in the said contention and, therefore, learned counsel for the petitioners has not addressed arguments on the other contentions. 7. The grounds of detention in paragraph 40 states that certain issues against the detenues were pending before the courts. Sub paras (A) to (C) are not relevant. Sub-para (D) of paragraph 40 pertains to FIRs under the Indian Penal Code, 1860. Customs authorities of ICD, Tughlakabad, New Delhi have filed FIR No.254/2012 in respect of clandestine removal of eight containers on the basis of forged Customs Gate Passes in Pul Prahladpur, Police Station, New Delhi. It is stated that Rohit Sakhuja and Ajit Singh Chadha are the main accused in the said FIR. Ajit Singh Chadha was arrested on 04.11.2012 in the said FIR. Rohit Sakhuja had preferred an application for anticipatory bail which was rejected by the Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... you. I am also aware that at-present you are under judicial custody for the matter being investigated by Police authorities and your bail application had been rejected at the first instance. However, taking into consideration your conducts all throughout the period since the investigation was initiated by DRI and your tendency to abscond, I am satisfied that your have high potentiality and propensity to indulge in aforesaid prejudicial activities, therefore, I am further satisfied that in the meantime you should be immobilized by detention under the COFEPOSA Act, 1974 which a view to prevent you from engaging in smuggling goods in future. 10. Paragraph 47 of the grounds of detention against Rohit Sakhuja read:- 47. I am aware that you are liable to punitive action under the Customs Act, 1962 and connected prosecution proceedings and adjudication proceedings are likely to be initiated against Shri Rohit Sakhuja i.e. you. I am also aware that at-present you are under judicial custody for the matter being investigated by Police authorities. However, taking into consideration your conducts all throughout the period since the investigation was initiated by DRI and your tendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Anr., (2006) 2 SCC 664, A.Shanthi (Smt.) v. Govt. of T.N. and Ors., (2006) 9 SCC 711; Rajesh Gulati v. Govt. of NCT of Delhi and Anr., (2002) 7 SCC 129 and it was observed that in the said cases it has been held that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. Reference was also made to the observations of the Constitution Bench decision in Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198 , wherein it was observed:- 34. Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to be likelihood of such a person indulging in activities which would jeopardize the security of the State or public order. 15. Thereafter, the Supreme Court referred to decisions in A.Geetha v. State of Tamil Nadu and Anr., (2006) 7 SCC 603 and Ibrahim Nazeer v. State of Tamil N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. 18. The said decision in Rekha (supra) in paragraph 6 thereof records the ground of detention which weighed with the Detaining Authority while passing the detention order. The said paragraph reads:- 6. In Para 4 of the grounds of detention, it is stated: 4. I am aware that Thiru. Ramakrishnan is in remand in P-6, Kodungaiyur Police Station, Crime No. 132 of 2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru. Ramakrishnan are taking action to take him o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 47 quoted above and paragraph 40 which we have noticed, no other paragraphs in the grounds of detention deal with bail applications and orders passed by the courts on the bail applications preferred by the detenues. It is clear from paragraph 47 that in the case of Ajit Singh Chadha, on the date when the impugned detention order was passed, he was in judicial custody and it is recorded that his bail application in the first instance had been dismissed and rejected. The detention order does not mention or state that whether any fresh bail application filed by Ajit Singh Chadha was pending consideration. It is also not stated or averred that Ajit Singh Chadha was likely to be released on bail or in similar cases accused secure and get released on bail. The words that Ajit Singh Chadha was imminently likely to be granted bail in the criminal cases in which he has been arrested are conspicuously missing and do not form part of the grounds of detention. There is complete silence on the said aspect. 22. In the case of detention order against Rohit Sakhuja, the situation is no better. It is stated that he had been arrested and was in judicial custody since arrest as the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility that the detenu already in custody is likely to be released. In Rekha's case (supra) the Supreme Court in clear and categorical terms has held that the detaining authority can reasonably conclude and must state that there is likelihood of the detenu being released on bail even though no bail application is pending, since most courts normally grant bail in such cases. Further, details of such cases must be given otherwise a bald statement of the authority cannot be believed. 24. In view of the reasons and law discussed above and the examination of the grounds of detention we have no option but to hold that paragraph 47 (and other paragraphs) of the impugned detention orders dated 04.01.2013 do not meet the criteria or ratio in the decision of Rekha (supra) and accordingly the detention orders dated 04.01.2013 are quashed and set aside. We, however, make it clear that this order will not affect the criminal cases and various FIRs which are pending against Rohit Sakhuja and Ajit Singh Chadha. We are not required to and have not examined whether they should or should not be granted regular bail in cases where the detenues have been arrested. We direct that the concerned detenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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